DHS Releases Interim Final Rule Removing Automatic Extension of EADs
On October 30, 2025, DHS released an Interim Final Rule that will eliminate the 540-day automatic extension of Employment Authorization Documents (“EADs”) for noncitizens in certain employment authorization categories who timely filed applications to extend their work authorization. This new rule does not affect EADS that were automatically extended prior to October 30, 2025. The rule also does not apply to F-1 STEM OPT students, as the automatic extension of STEM OPT-based employment authorization is based on a different regulation that is not altered by this Interim Final Rule.
DHS will accept comments on this Interim Final Rule until December 1, 2025. If you wish to comment, please go to the Federal Register website here.
Read the announcement from USCIS here.
E-Verify is Operational During the Government Shutdown
On October 9, 2025, USCIS announced that E-Verify was once again operational after being suspended due to the government shutdown. The E-Verify website states that employers should still use an employee’s actual hire date and not the date of data entry when entering a new hire into the E-Verify system. The E-Verify system will then prompt employers to enter a reason for a delay in entry, to which employers should select “E-Verify not available” from the drop-down menu. The E-Verify website confirms that entry delays caused by E-Verify's unavailability due to the government shutdown will not count towards the three business days employers usually have to enter new hires into E-Verify.
See the E-Verify announcement for more information.
Significant Update to $100,000 H-1B Payment Proclamation: October 20, 2025
As you may be aware from our previous alerts, on September 19, 2025, President Trump signed Presidential Proclamation 10973 “Restriction on Entry of Certain Nonimmigrant Workers,” which became effective on September 21, 2025.
On October 20, 2025, USCIS published significant updates and guidance on its website regarding who the Proclamation applies to and how and when to make the payment. The guidance states that the Proclamation applies to:
beneficiaries who are outside the U.S. and do not have a valid H-1B visa at the time that their H-1B petition is approved;
beneficiaries of H-1B petitions filed after the Proclamation effective date that request consular notification, port of entry notification, or pre-flight inspection; and
beneficiaries of H-1B petitions filed after the Proclamation effective date who receive a denial for their request to change, amend, or extend their stay and must undergo consular processing to complete their H-1B process.
Importantly, USCIS’s October 20, 2025, update specifically provides that the Proclamation does not apply to:
Any previously issued or currently valid H-1B visas;
Any H-1B petition submitted prior to September 21, 2025;
Any H-1B petition submitted on or after September 21, 2025, that requests an amendment, change of status, or extension of stay for a foreign national inside the U.S. Furthermore, the update provides that a foreign national beneficiary of such a petition will not be subject to the payment if they then depart the U.S. and apply for an H-1B visa abroad based on that approved petition and/or seek reentry to the US on a current H-1B visa.
USCIS also provided the link for submitting the $100,000 payment and confirmed that the payment should be made via pay.gov prior to filing the H-1B petition with a USCIS Service Center.
Finally, USCIS’ website posting provided information on how employers can request an exception to the Proclamation. The update states that in “extraordinarily rare circumstances,” the Secretary of Homeland Security may exempt a petition from the payment if the petitioner can establish:
The H-1B worker presence in the U.S. is in the national interest,
No American worker is available to fill the role,
The H-1B worker does not pose a threat to the security or welfare of the U.S., and
Requiring the petitioning employer to make the payment on the beneficiary’s behalf would significantly undermine the interests of the U.S.
Prior to filing the H-1B petition, petitioning employers must send a request and all supporting evidence to H1BExceptions@hq.dhs.gov. There is no further guidance on how long this request will take, or specific examples of the type of supporting evidence required.
We will continue to provide updates as we receive them.
Carry Proof of USCIS Registration At All Times
As of April 2025, all foreign nationals (including Permanent Residents) fourteen years old and older must register with USCIS and carry proof of their registration at all times. Most foreign nationals with valid immigration status were already registered as part of their visa and I-94 issuance process. The most common proof of registration includes I-94s (either printed from the CBP website or at the bottom of an I-797 Approval Notice), green cards, and EADs.
See our previous notification for more information.
U.S. First Circuit Court of Appeals in Boston Upholds Birthright Citizenship
On October 3, 2025, The First Circuit Court of Appeals in Boston, MA upheld a lower district court decision that prevented President Trump from enforcing his Executive Order ending birthright citizenship for children of certain noncitizen parents. See our previous publication on the Birthright Citizenship Executive Order here. In short, birthright citizenship is explicitly written into the Fourteenth Amendment of the Constitution and cannot be rescinded without amending the Constitution.
President Trump continues to challenge injunctions against the Executive Order. In September, the Trump Administration asked the Supreme Court to uphold his order, arguing, contrary to 127 years of established law and almost all legal experts, that constitutional birthright citizenship does not apply to the children of foreign nationals.
Read the ACLU’s press release on the First Circuit decision here.
How the Government Shutdown Impacts Employment-Based Immigration
Under a federal government shutdown, only essential and fee-based governmental functions will continue to operate. The shutdown impacts immigration compliance and case processing in the following ways:
Employers should expect government delays with PERM and H-1B cases, as the Department of Labor will not be processing Labor Condition Applications for H-1B petitions or Prevailing Wage Determinations or Labor Certifications for PERMs until the government re-opens.
USCIS will continue to process and adjudicate almost all cases since it is a fee-based agency and does not rely on congressional funding. However, adjudications under the Conrad 30 program could become suspended.
SEVP offices will remain open.
American embassies and consulates will initially continue to process visas and passports since they are primarily fee-funded. However, embassy and consulate functions might become limited to diplomatic visas and life-or-death emergencies if the government shutdown becomes prolonged.
E-Verify will be unavailable until the government re-opens, and DHS has suspended the three-day rule for entering new hires into E-Verify. However, employers are still required to complete Form I-9 within three business days of a worker’s first day of employment. Employers should track new hires to enter into E-Verify once the government reopens and the system becomes available again.
Employers and Advocacy Groups Sue Trump Administration over $100,000 H-1B Payment
On October 3, 2025, several employers and advocacy groups jointly filed a lawsuit against the Trump Administration for the September 19, 2025 Presidential Proclamation imposing a $100,000 payment for new H-1B petitions. Please see our client advisory here for more information on the Proclamation.
The lawsuit asserts a constitutional claim that the Trump Administration acted beyond the scope of his presidential powers and the powers Congress delegated to the Executive Branch through the Immigration and Nationality Act. Plaintiffs also asserted three statutory claims for violations under the Administrative Procedure Act (“APA”), which is the body of law that governs agency action. These APA claims are: (1) exceeding statutory authority (similar to the constitutional claim, but still distinct); (2) making an arbitrary and capricious decision by failing to consider the many ways that the Proclamation would impact the H-1B program and failing to properly explain how the $100,000 payment would work; and (3) failing to follow the required Notice and Comment procedure for making new rules under the APA.
Plaintiffs requested a injunction to prohibit the Trump Administration from requiring the $100,000 payment and to order the Trump Administration to process H-1B petitions and visas under previously existing laws. No injunction has been ordered yet, so employers and H-1B workers should still follow existing guidance from the Departments of State and Homeland Security until further notice.
Read the lawsuit’s complaint here.
Higher Ed Immigration Portal Releases Guide, “Beyond Approval: What to Know After Receiving Your H-1B or O-1A Visa
Higher Ed Immigration Portal has released a new guide on H-1B and O-1A status for nonimmigrants who recently obtained one of these statuses through consular processing and who may not have access to immigration counsel. The guide, “Beyond Approval: What to Know After Receiving Your H-1B or O-1A Visa,” offers general information on employment restrictions, re-entry procedures, international travel, taxes, health insurance, and other topics.
Access the guide here.
USCIS publishes updated guidance on Military Naturalization
On September 26, 2025, USCIS published guidance explaining that “uncharacterized discharges” occurring on or after August 1, 2024 “do not meet the requirement of a separation ‘under honorable conditions’ for former [noncitizen] service members to naturalize.” This change is based on updates the Department of Defense (DOD) made to its discharge instructions on August 1, 2024. Prior to this date, the DOD always used uncharacterized military discharges for “administrative matters,” but the August 1, 2024 update removed this requirement. The DOD update “also addressed entry-level separations as a distinct and separate category of discharges apart from honorable and general (under honorable conditions discharges.”
Under the same announcement, USCIS also stated that they will no longer coordinate with CBP to perform naturalization interviews and oath ceremonies at ports of entry. Naturalization applicants living outside the U.S. must instead obtain a visa or be paroled into the U.S. for a naturalization interview.
Read the USCIS announcement here.
USCIS to add Special Agents with new law enforcement authorization
Last month, USCIS announced that it would be expanding its law enforcement authorities under a new power delegation from the Department of Homeland Security. This creates newly-minted USCIS 1811 classified officers (or “special agents”) who are “empowered to investigate, arrest, and present for prosecution those who violate America’s immigration laws.” The special agents are authorized to carry firearms and execute search and arrest warrants. The USCIS Director is also now authorized to order expedited removal, a deportation process with fewer legal protections for immigrants who have recently entered the US. Lastly, USCIS can also now oversee the entirety of an investigation for potential civil and criminal immigration law violations (USCIS previously referred investigations to ICE).
Read the full USCIS announcement here.